Birth injuries
At Tabor Lindsay & Associates, PLLC, we recognize that pregnancy and childbirth are typically joyous occasions for families, marking the thrilling arrival of a new member into their lives. However, amidst this celebration, it is important to remain vigilant, as medical errors during pregnancy and delivery can go unnoticed until they manifest as health complications in the newborn. According to HealthGrades, the annual incidence of birth injuries stands at approximately 28,000 cases, with potential consequences that may lead to lifelong physical impairments. If you suspect that your child or a loved one has suffered a birth injury due to medical negligence, we invite you to reach out to our experienced team in Charleston, West Virginia. We are dedicated to providing a thorough consultation to explore your situation and discuss potential paths to address the impact of these unfortunate events. Your family's well-being is our priority, and we are here to guide you through this challenging process. Contact us in Charleston, West Virginia, to schedule a consultation regarding any birth injury your child or a loved one’s child may have suffered.
Understanding Birth Injuries: A Professional Insight
Birth injuries refer to physical harm sustained by either the mother or the infant during pregnancy, labor, or delivery. These injuries can result in significant and lasting neurological impairments, particularly in infants, leading to a variety of physical and cognitive challenges. Neurological damage may arise from factors such as insufficient oxygen supply or trauma during the birthing process.
The consequences can include disabilities and psychological concerns that affect the child's development. It is important to note that families are often not informed of the specific causes of their child's injuries by healthcare providers, including doctors, midwives, and hospitals. When it is determined that neurological damage may have resulted from medical negligence during the birth process, it is crucial to seek expert guidance. At Tabor Lindsay & Associates, PLLC, our team, comprised of attorneys with medical backgrounds, is dedicated to uncovering the root causes of birth-related injuries. We specialize in cases involving Erb’s Palsy, Cerebral Palsy, and brain damage, and we are committed to ensuring that families receive the justice and support they deserve.
ERB’s Palsy
Erb's Palsy is a condition that can result from physical injury during delivery, with its impact varying widely from mild to severe based on the extent of nerve damage. This condition arises when the nerves in the upper arm of the infant are compromised, affecting approximately one to two out of every 1,000 births. Specifically, it is associated with lesions in the brachial plexus, a network of nerves located in the neck that controls movement in the arm, hand, and fingers. One common scenario that can lead to Erb's Palsy is shoulder dystocia, which may occur in challenging births, particularly when excessive traction is applied to the baby's shoulders.
Consequently, infants may exhibit limited mobility in the shoulder or upper arm, while still being able to move their fingers, which can give the appearance of paralysis in the affected limb. The degree of severity of the nerve injury plays a crucial role in determining the potential for recovery. Instances of excessive pulling during delivery, particularly with larger infants, increase the risk for developing this condition. It is essential to acknowledge that while Erb's Palsy can present significant challenges, proactive medical interventions and therapeutic strategies can enhance recovery outcomes for affected infants.
Results from a lesion in an area of the neck at the brachial plexus that gives movement to the arm, hand, and fingers
Often caused by shoulder dystocia during a difficult birth Infants are unable to move the shoulder or upper arm but can wiggle fingers It looks like the arm is paralyzed
The level of severity determines how well the infant recovers
Occurs during excessive pulling on the shoulders at delivery when the baby is disproportionately bigger than the birth canal
Identifying ERB’s Palsy in Your Child
ERB’s Palsy is a form of paralysis affecting the arm, typically resulting from an injury to the brachial plexus—a crucial network of nerves extending from the spine to the hand. This condition may arise due to accidents or lapses in medical care during childbirth. To determine if your child may have ERB’s Palsy, look for specific signs and symptoms, which can include:
Limitation of movement in the affected arm, which may be observed as a limp posture held close to the body with the elbow bent.
A noticeable decrease in grip strength on the affected side. - Signs of partial or complete paralysis.
Loss of sensory and motor function in the upper arm.
Numbness in the arm.
Impaired development of circulatory, muscular, and nervous functions.
If you suspect your child may have ERB’s Palsy, seeking an evaluation from a medical professional is essential. Early intervention can significantly improve outcomes and support your child's development.
Cerebral Palsy (C.P.)
Cerebral Palsy (C.P.) is a comprehensive term used to describe a range of motor function impairments. This condition is characterized by its permanent and non-progressive nature, which stems from compromised muscle coordination—often referred to as spastic paralysis—resulting from brain injury sustained before or during the birthing process. There are instances where Cerebral Palsy may be attributed to medical negligence. Such circumstances can include:
C.P. Caused by Medical Negligence
Entanglement or umbilical cord
Entrapment in the birth canal (baby too large or improperly positioned)
Undetected to improperly treated infections during pregnancy
The baby was in fetal distress, but the medical staff did not perform
Cesarean Section Birth trauma
Lack of oxygen (hypoxia) Forceps assisted delivery
Unnecessary use of vacuum
Symptoms, Diagnosis, Treatment, and Pathology of C.P.
What Qualifies as a Birth Injury Under West Virginia Law?
A birth injury is distinct from a congenital birth defect. While birth defects typically develop during early pregnancy due to genetic or environmental factors, a birth injury is physical harm sustained by the infant or mother during labor, delivery, or immediately postpartum—often resulting from preventable medical oversight or mechanical trauma.
Under the West Virginia Medical Professional Liability Act (W. Va. Code § 55-7B), our legal team establishes liability by demonstrating that:
The medical team owed a duty of care to the mother and fetus.
The obstetrician, midwife, nurse, or hospital breached the recognized medical standard of care during prenatal management, labor, or delivery.
The failure directly caused preventable oxygen deprivation, physical trauma, or neurological injury.
The child or family suffered measurable economic and non-economic damages.
Risk Factors for Cerebral Palsy
Risk Factors can be divided by period into antenatal, perinatal, and postnatal factors. The majority of the risk occurs in the antenatal period. Prematurity is a significant risk factor, predisposing to periventricular leukomalacia (PVL) development. Prudent obstetrical care, with the management of preeclampsia (magnesium), infections (antibiotics), and preterm labor (corticosteroids), can help reduce the risk of C.P.
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Medical Malpractice
When healthcare professionals fail to provide proper care, the results can be devastating. Our attorneys help victims of medical negligence pursue justice and compensation for injuries caused by errors, misdiagnoses, or improper treatment.
Birth Injury
A birth injury can change a family’s life forever. We stand beside parents and children affected by medical negligence during childbirth, helping them obtain the support and compensation they deserve for lifelong care and recovery.
Wrongful Death
When negligence leads to the loss of a loved one, families deserve answers and accountability. Our firm provides compassionate legal guidance to help you seek justice and financial relief during one of life’s most difficult times.
Personal Injury
From car accidents to slip-and-fall injuries, we fight to protect your rights and ensure you’re fairly compensated for medical bills, lost wages, and pain and suffering. You focus on healing — we’ll handle the rest.
Frequently Asked Questions
How do I know if my baby's condition was caused by a medical error?
Warning signs of labor and delivery negligence include an emergency C-section performed after hours of labor arrest, low APGAR scores (below 5 at 5 and 10 minutes), immediate resuscitation or intubation in the delivery room, infant seizures within the first 24–48 hours, emergency transfer to a Level III/IV NICU, or cooling therapy (therapeutic hypothermia) administered for brain swelling.
How do I know whether my child’s injury may have resulted from medical negligence?
Families are not always given a clear explanation for why a birth injury occurred. Tabor Lindsay & Associates emphasizes investigating the circumstances surrounding pregnancy, labor, and delivery to determine whether medical negligence may have played a role.
Why can an attorney with a medical background be helpful in a birth injury case?
Tabor Lindsay & Associates specifically highlights that its attorneys have medical backgrounds. That medical knowledge can help the firm understand the medical circumstances surrounding a birth-related injury and investigate whether the care provided may have contributed to the child’s condition.
How are birth injury settlements managed for a minor child?
In West Virginia, settlements involving minor children require formal circuit court approval to ensure the agreement is in the child's best interests. Funds are typically structured through secure annuities, court-supervised accounts, or Special Needs Trusts (SNT) that preserve your child's eligibility for Medicaid, SSI, and government support programs while providing lifelong funds for medical and living care.
Expertise in the Medical Field:
Your Trusted Legal Partners
Tabor Lindsay & Associates, PLLC stands with West Virginians facing the aftermath of medical negligence — when families feel overwhelmed, dismissed, or shut out by powerful institutions. We are doctor-lawyers.
That means we don’t just “review records.” We understand how medical decisions are made, where standards of care matter most, and how preventable mistakes can change a life. We’ll explain what happened in plain language, then fight relentlessly for truth, accountability, and justice.
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What Qualifies as Medical Malpractice in West Virginia?
What Qualifies as Medical Malpractice in West Virginia?
When medical treatment causes an unexpected injury, patients and families are often left wondering whether something simply went wrong—or whether a healthcare provider made a preventable mistake.
So, what qualifies as medical malpractice in West Virginia?
In general, a medical malpractice claim involves more than receiving a poor result from treatment. West Virginia law requires evidence that a healthcare provider failed to meet the applicable standard of care and that this failure caused or contributed to a patient's injury or death.
Understanding that distinction is important because medicine does not guarantee a perfect outcome. Complications can happen even when doctors, nurses, and hospitals provide appropriate care. Medical malpractice becomes a legal issue when the care provided falls below what was reasonably expected under the circumstances and causes harm.
At Tabor Lindsay & Associates, PLLC, our doctor-lawyer team approaches these cases from both the medical and legal sides. Understanding what happened often begins with understanding the medicine behind it.
What Does West Virginia Consider Medical Malpractice?
West Virginia's Medical Professional Liability Act broadly defines medical professional liability as liability for injury or death arising from healthcare services that were provided—or should have been provided—by a healthcare provider or healthcare facility.
But simply experiencing an injury during medical treatment does not automatically establish malpractice.
Under West Virginia Code §55-7B-3, two central issues must generally be established:
The healthcare provider failed to meet the accepted standard of care.
That failure was a proximate cause of the patient's injury or death.
Those two requirements are at the heart of most medical malpractice cases.
The Healthcare Provider Owed You a Duty of Care
A medical malpractice case normally begins with a healthcare relationship.
For example, a doctor who agrees to diagnose or treat you generally assumes responsibilities associated with providing that care. The same concept can apply to hospitals, nurses, physician assistants, pharmacies, and many other healthcare professionals and facilities.
West Virginia law's definition of a healthcare provider is broad and includes physicians, hospitals, nurses, dentists, pharmacists, physical therapists, emergency medical personnel, and numerous other licensed professionals and organizations.
Once care is being provided, the next question becomes whether that care met the appropriate professional standard.
The Provider Failed to Meet the Standard of Care
The standard of care is one of the most important concepts in a West Virginia medical malpractice case.
West Virginia law asks whether the healthcare provider exercised the degree of care, skill, and learning reasonably expected of a prudent provider in the same profession or class under the same or similar circumstances.
Did the provider involved in your care do something materially different?
A potential breach of the standard of care could involve actions such as:
Failing to recognize symptoms that should reasonably have led to further testing
Misinterpreting diagnostic information
Delaying necessary treatment
Performing a procedure incorrectly
Administering the wrong medication or dosage
Failing to properly monitor a patient
Failing to respond appropriately to complications
Making preventable errors during labor or delivery
Discharging a patient when additional care was reasonably necessary
Whether a specific action actually violated the standard of care depends heavily on the medical facts. Two cases that initially sound similar can have very different medical explanations.
That is why reviewing the records, timeline, testing, treatment decisions, and applicable medical standards is so important.
The Medical Error Must Have Caused Harm
Finding a medical mistake is not necessarily enough to establish malpractice.
There must also generally be a connection between the provider's failure and the injury.
West Virginia law requires the failure to follow the accepted standard of care to be a proximate cause of the injury or death.
Suppose a physician fails to diagnose a condition promptly. That delay may raise concerns about the standard of care. But a malpractice case would also need to examine whether receiving the appropriate diagnosis earlier would likely have changed what happened to the patient.
This causation question can become one of the most medically complex parts of a malpractice claim.
The Patient Suffered an Actual Injury or Loss
A viable medical malpractice claim typically involves measurable harm resulting from the negligent care.
Depending on the circumstances, damages may involve issues such as:
Additional medical treatment
Additional surgeries or procedures
Permanent disability
Lost income
Reduced ability to work
Rehabilitation or long-term care
Physical pain
Emotional suffering
Losses associated with a patient's death
The nature and extent of the harm will be different in every case.
The important distinction is that malpractice law addresses injuries caused by negligent medical care—not simply the fact that a provider made a mistake that caused no resulting harm.
What Are Common Examples of Medical Malpractice?
Medical malpractice can occur in many different medical settings.
Potential cases may involve:
Misdiagnosis or Delayed Diagnosis
A provider may fail to identify a serious condition, overlook significant test results, or delay testing that reasonably should have been performed.
However, a missed diagnosis does not automatically mean malpractice occurred. The question is whether the care fell below the applicable medical standard and whether that failure caused harm.
Surgical Errors
Potential surgical malpractice can include operating on the wrong area, damaging surrounding structures, leaving surgical material inside a patient, or failing to appropriately manage complications.
Again, complications themselves are not necessarily malpractice. Some complications are recognized risks of even properly performed procedures.
Medication Errors
Errors may occur when a medication is improperly prescribed, dispensed, administered, or monitored.
The medical circumstances matter enormously, particularly when several providers or facilities were involved in a patient's treatment.
Birth Injuries
Medical negligence during pregnancy, labor, delivery, or immediate newborn care can sometimes result in serious injuries to a child or mother.
These cases can require an extensive review of fetal monitoring, labor progression, medication, delivery decisions, timing, and other clinical information.
Failure to Monitor a Patient
Hospitals and healthcare providers may need to monitor changes in a patient's condition and respond appropriately when warning signs appear.
Failing to recognize or respond to deterioration can potentially become an important issue in a malpractice investigation.
Is a Bad Medical Outcome Automatically Malpractice?
No.
This is perhaps the most important misconception surrounding medical malpractice.
A poor outcome does not automatically prove that a healthcare professional was negligent.
Some illnesses progress despite appropriate treatment. Surgeries carry recognized risks. Medications can cause unavoidable side effects. Patients can experience serious complications even when everyone involved follows the proper medical standard.
The question is not simply:
“Did something bad happen?”
The better question is:
“Was the patient's injury caused by care that fell below the accepted medical standard?”
Determining that usually requires carefully reconstructing what happened before, during, and after the injury.
How Do You Determine Whether Medical Malpractice Occurred?
Medical malpractice cases often begin with the medical records.
A proper investigation may examine:
Hospital and physician records
Diagnostic tests
Imaging
Laboratory results
Medication records
Nursing notes
Operative reports
Fetal monitoring records
Discharge instructions
The sequence and timing of important medical decisions
The timeline can be especially important.
A single entry in a chart may look insignificant until it is compared with test results, symptoms, medication administration, or decisions made several hours earlier.
That medical complexity is particularly relevant to Tabor Lindsay & Associates. Dr. Pamela Tabor Lindsay and Dr. Richard Lindsay bring medical backgrounds in addition to their legal experience, allowing the firm to examine medical malpractice cases through both perspectives.
Does West Virginia Require a Medical Expert Before a Malpractice Lawsuit?
West Virginia has specific pre-suit requirements for medical professional liability claims.
Generally, before filing a medical malpractice lawsuit against a healthcare provider, a claimant must provide the provider with a notice of claim. Under West Virginia Code §55-7B-6, that notice generally must be served at least 30 days before filing suit and ordinarily includes a screening certificate of merit from a qualified healthcare provider addressing issues including the standard of care, breach, and causation. The statute provides exceptions and additional procedures for certain situations.
This is another reason suspected malpractice should be evaluated carefully rather than treated like an ordinary personal injury claim.
How Long Do You Have to File a Medical Malpractice Claim in West Virginia?
There are strict deadlines for bringing medical malpractice cases in West Virginia.
For many claims against healthcare providers, West Virginia Code §55-7B-4 establishes a two-year limitations period measured from the injury or from when the injury was discovered or reasonably should have been discovered, subject to additional restrictions and exceptions. Different rules apply to certain facilities, minors, concealment, and other circumstances.
Because determining the exact deadline can depend on the facts, someone who suspects malpractice should not assume that they have a particular amount of time remaining.
If you are trying to determine whether negligent medical treatment caused your injuries, a medical malpractice attorney in Charleston, WV can review the medical and legal issues involved.
What Should You Do If You Suspect Medical Malpractice?
If something about your medical care does not make sense, start by preserving information.
Keep copies of documents you already have, including discharge paperwork, test results, bills, medication information, and communications concerning your treatment.
It can also help to write down what you remember while the events are still fresh, including:
When symptoms began
Which providers you saw
What you were told
When your condition changed
When additional treatment became necessary
Most importantly, having concerns does not mean you have to determine by yourself whether the medical standard was violated.
That is exactly what a careful case evaluation is intended to help determine.
Talk With a Charleston, WV Medical Malpractice Attorney
Medical malpractice cases are rarely just about one unusual test result or one line in a hospital chart. Understanding whether malpractice occurred may require examining the entire medical picture—what the provider knew, what should have been done, when decisions were made, and whether those decisions caused the patient's injury.
Tabor Lindsay & Associates, PLLC represents West Virginians in serious medical negligence cases. Our doctor-lawyer team brings medical knowledge and legal experience together to help patients and families understand what happened and determine what options may be available.
If you believe you or someone you love may have been injured because of negligent medical care, you can speak with our team about what happened.
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